Going for a Song
Going for a Song tells the story of Tina and Ben, a music composer and a lyricist who create an original song and discuss how to market it. Check the texts below and learn how UK copyright law regulates different aspects of the journey of a song, from its creation to its distribution.
What constitutes a song? Copyright works in a song.
A song is the combination of melody and words. Each is protected by copyright: the melody as a musical work and the lyrics as a literary work. One or the other could be used separately and still be protected. In the video, Tina is the author of the melody (composer) and Benjamin is the author of the words (lyricist).
The song is protected by copyright once it has been ‘fixed’ in a form that can be copied, such as being written down or recorded. It has to be original in the sense of not having been copied from elsewhere (see Track 2). Copyright enables the authors to control the use of their work: who uses it and how.
Copyright prevents people from
- • copying the protected work (the reproduction right)
- • distributing copies of it, whether free of charge or for sale (the distribution right)
- • renting or lending copies of the work to the public (the rental right)
- • performing, showing or playing the work in public (the public performance right)
- • communicating the work to the public, including putting it on the internet (the communication right)
- • making an adaptation of the work (the adaptation right).
Copyright ensures that if anyone wants to do any of the things listed above with Tina and Ben’s song, they first need to get permission from both of them. Each of the writers of a song has those rights, regardless of how much or little they contributed to it. Since Tina and Ben are co-authors of the song, copyright in both elements of the song (the melody and the lyrics) will last for 70 years after the death of the last surviving author. This is the case in the UK and many other countries, but copyright is not identical in all territories. For more information about copyright duration, see Copyright Bite #1.
Protecting your song
Tina and Ben both own the song in a sense because each has contributed to its creation. However, each owns a different element of the song: Tina wrote the tune, so she is the owner of the melody, while Ben wrote the words, so he owns the lyrics. This means that if someone wished to use just the melody of the song, they would need only Tina’s permission. For commercial reasons, songwriters may come to an agreement to take equal credit for melody and lyrics even if their contributions are not equal. One of the most famous song writing partnerships of all, Lennon and McCartney, are an example of such an arrangement. You can find more information about ownership of copyright works here: https://www.gov.uk/guidance/ownership-of-copyright-works
Copyright law protects against copying so the song must be ‘original’ and in some ‘fixed’ form (that could be copied). Tina and Ben could fix the song by recording it on a mobile phone or any other means of doing so, e.g. by writing it on a piece of paper. They choose to record it on their computer and that immediately ‘activates’ copyright protection for them both. There is no need to register the copyright as protection is automatic.
Ben seems to be worrying about ‘originality’ when he says they might need proof they created the song first. There are steps that creators can take to help prove their ownership, should this ever be disputed. For example, some creators send themselves a copy of their work by registered post or mark their work with the copyright symbol © followed by their names and the year in which the work was created or published: e.g. © Tina Treble and Benjamin Bass 2016. However, this is not essential for copyright protection.
The exact meaning of ‘originality’ is not defined in UK legislation but it is guided by facts and judgements from case law. In the UK, courts have set a fairly low bar for satisfying the requirement of originality: so long as the creation of the work involves some labour, skill, judgement or effort, and it is the authors’ own intellectual creation, the work will be considered original and so protected by copyright.
Protection and earning money from the song are different matters, however, and to obtain any financial reward, Tina and Ben need to perform the song (or let someone else perform it) and register it with a collecting society (Track 6), and maybe also get a contract with a record label (Track 4) or decide to release their song themselves on the internet (Track 5).
Sound Recording Rights
By recording their song Tina and Ben satisfy the ‘fixation’ requirement and their original song will be protected by copyright. But when they record their song they also create a new copyright work known as a ‘sound recording’, also sometimes known as a ‘master’. The copyright in a sound recording is different from the copyright in a song in a number of significant ways.
The ownership of the sound recording copyright rests with the ‘author’ of the recording. But this is not necessarily a human author in the usual sense of the word. In UK law the author of a sound recording is the ‘producer’, a legal term usually taken to be the record company that paid for the recording to be made.
So, if Tina and Ben make a recording of their song themselves, they will own the copyright in the recording. However, if they sign a deal with a record company, it is likely that the record company will be identified as the author and owner of the copyright in the sound recording (see Track 4).
The sound recording right also differs in duration from the copyright in the song. In the UK this copyright has a term of 70-years from release of the work. This is potentially a considerably shorter term than the copyright in the song of 70 years after the death of the last surviving author. Somewhat confusingly, this means the copyright in the sound recording may expire long before the copyright in the song featured on the recording. The duration of each copyright may vary depending on the country.
Alongside the sound recording copyright there are also related public performance rights. These can be split into: producers’ rights (usually those of the record company) and performers’ rights (those of the performers that feature on the recording).
Besides being the writers of the song, Tina and Ben also have performers’ rights in their recording. Performers routinely transfer most of these rights to a record company when they sign a recording contract. Although they may transfer control of these rights to the record company, by law they will retain some economic rights in their performances.
This means that when the sound recordings are broadcast or performed in a public place, a collecting society (see Track 6.) will collect royalties and distribute them directly to producers and performers on shared basis.
You can find more information about ‘Copyright in sound recordings’ here: https://www.gov.uk/government/publications/copyright-in-sound-recordings/copyright-in-sound-recordings
Deals: Publishing and Recording Deals
Having written their song and performed at the open-mic, Tina and Ben want to find a wider audience for it and they also hope to make some money out of it. Traditionally there are two main types of contracts or ‘deals’ they are likely to seek in order to achieve this: a music publishing deal and a record deal. Although they are worried that these deals could be immensely complex, it is possible to identify the core elements of these copyright contracts…
The exclusive ‘bundle of rights’ identified in Track 1 in the song and the recording of the song form the foundations of two main pillars of the music industries: the music publishing industry and the recording industry.
The music publishing industry is primarily engaged in the acquisition and exploitation of the copyright in songs. Songwriters transfer control of the rights in their song, or even all of the songs they write during an agreed period, to the publisher. In return they receive a share in profits from the song in the form of royalties, and perhaps even an advance payment against future royalties. The copyright in the song will often revert to the ownership of the writer/s after an agreed term stated in the contract. In the UK, songwriters often transfer their rights to a publisher ‘subject to the rights of PRS’; i.e. they assign the performing right and communication to the public rights in their works directly to PRS (see Track 6).
As the name suggests, the recording industry is engaged in the production and dissemination of sound recordings. In most instances the record company will be the owner of the copyright in recordings they have paid for. The record deal will, like the publishing deal, usually make provision for artist royalties.
Record companies and music publishers offer creators access to support, specialist expertise and financial backing that otherwise might not be available to them. However, Ben and Tina must be aware that, until any advance payment and other costs such as recording and promotional expenses are paid back or ‘recouped’, they will not receive income from the copyright they have assigned or licensed in the deal.
An assignment of rights is akin to a full transfer of ownership, albeit not always on a permanent basis. A licence of copyright may be more limited in scope, and does not imply a full transfer of ownership. Creators are required to assign or license control over their song to the record company and/or publisher not only for the UK, but also often on a worldwide basis. Record companies and publishers will then administer the copyrights in other territories or engage local companies to do so.
In short, signing a deal has wide-ranging ramifications that Ben and Tina must consider. Before entering the agreement they should seek the advice of a specialist music lawyer. Indeed, a reputable record company and/or publisher will most likely to insist on this in order to ensure the contract is enforceable.
But where record and publishing deals were once seen as essential, in the Digital Age, technology has made it far easier for creators like Tina and Ben to release their own songs and recordings (see Track 5).
Self-release: distributing music directly to the public
Tina and Ben are faced with numerous decisions about how best to reach an audience and make money from the copyright in their song but they are unsure which route to follow.
The traditional option would be to make a deal with a music publisher and seek a contract with a record company. Given the high production and marketing costs in the pre-digital era, these companies were once seen as crucial ‘gatekeepers’ for creators with serious commercial ambitions for the copyright in their works.
However, in the digital age many costs involved in recording and marketing music have been significantly reduced by the availability of affordable, accessible technologies. Moreover, in response to the so-called ‘digital revolution’, various digital distributors and music aggregators have emerged offering access to large, disaggregated global audiences on music download and streaming services meaning that ‘DIY’ creators can now self-release their music affordably and easily.
Ben is aware of the opportunities to instantaneously transmit their music to potentially vast online audiences, but Tina is concerned that they will not be able to get paid for doing so. However, copyright protects songs and recordings in the digital sphere just as it does in the physical world.
Indeed, perhaps the biggest benefit in choosing the self-release route to market is that Tina and Ben would retain full control of the economic rights in the song and in the recording rather than sharing them with a third party such as a music publisher or record label.
While this approach may seem like an attractive alternative to the traditional model, the benefits are likely to be offset by significant costs. Tina and Ben would be responsible, not only for paying for the recording, but also a host of other expenses traditionally covered by publishers and record companies such as marketing.
The decision to ‘sign a deal’ or alternatively follow the ‘DIY’ self-release approach therefore contains considerable unknown costs and benefits. What is far more certain is that without a sizable audience it is unlikely that Tina and Ben will be able to make a living from the copyright in their music. The challenge for them is judging how best to reach and capitalise on these audiences.
In this context it is important to remember that the vast majority of new creators that achieve mainstream commercial success are contracted to record companies and music publishers. This suggests, even with the advent of affordable technology and accessible audiences, record companies and music publishers continue to perform a vital role for many creators.
Public Performance, Royalties and Collecting Societies
According to copyright law, permission is required whenever songs and recordings are copied, communicated to an audience or performed in public, unless the use is covered by a copyright exception. Usually, though not always (see Track 7), permission is granted in exchange for a payment by the user to the relevant rights holders. In practice, this is achieved through a wide range of different copyright transactions that grant permission and license use.
Many of these transactions are conducted on an individual basis between rights holders and rights users. Record sales or ‘synchronisation’ of music to moving pictures in movies and video games are examples of individually negotiated copyright transactions. The user pays the rights holder an agreed sum and royalties are subsequently distributed to the various relevant creators in accordance with recording and publishing contracts (see Track 4).
However, given the ever-growing potential for the public performance and online use of music, it would be massively impractical, inefficient and costly for rights holders and users to individually negotiate every licence on a case-by-case basis.
To reduce those costs for rights holders and rights users alike, collecting societies have been established in order to collectively negotiate and issue blanket licences to users, and to collect and distribute royalties to rights holders. The blanket licence allows any person or organisation to use all the titles in the collecting society’s repertoire, in accordance with certain terms and conditions.
As songwriters with ambitions to become recording artists, Tina and Ben will probably need to join several collecting societies at some point in their careers in order to collect all of their royalties. Income from collecting society sources can be especially important to new-entrant creators.
Collecting societies administer copyright in domestic and international markets. In the UK the three music collecting societies are: PRS, MCPS and PPL. The rights of PRS and MCPS are administered by ‘PRS for Music’. The easiest way to distinguish the UK Societies is by the type of rights they administer and the type of membership they represent.
PRS owns copyright in songs when they are performed, played in public, broadcast or used online. The membership of this society is made up of songwriters and composers, as well as music publishers.
PRS is the society Tina and Ben are likely to join first. By playing their song at the open-mic they are giving in a public performance of a copyright work. The venue will pay a blanket licence fee to PRS for Music. PRS then pays a percentage of this fee to Tina and Ben as a royalty. Similarly, if they decide to upload their song to a licensed digital music service, PRS will collect payments for them.
MCPS also administers copyright in songs and, again, its members are publishers and songwriters. However, rather than dealing with the public performance of songs, this society issues licences for the mechanical reproduction of musical works. Although this type of use is most readily associated with record companies making physical records and CDs, it also applies to many other types of licensee, including broadcasters and online services.
Tina and Ben should join MCPS when their song is commercially released by a record company, featured in a TV program or used online. However, Tina and Ben do not need to join MCPS if they have a publisher.
PPL’s primary function is to administer the producers’ and performers’ rights in sound recordings and in many respects its function is similar to PRS for Music. Whenever recorded music is performed in public or broadcast on radio or TV PPL issues a licence to the venue or broadcaster and collects royalties on behalf of producers and performers. However, unlike in the case of PRS and MCPS, PPL has no current role in administering sound recording rights online.
Creators like Tina and Ben should join PPL when they perform on a commercially released sound recording that is played in public or broadcast.
Tina and Ben are not the only ones who have to sort out copyright – so do the makers of this video! Aside from lyrics and melody of the song, and the recording of the music, copyright also subsists in the script, the artwork, the voiceover and the film/video itself. The permission of owners of all of these rights must be obtained before using them. When recorded music is used in conjunction with moving images e.g. movies, games, commercials or as it used in this video, it is known as ‘synchronisation’. The law dictates that in order to use the music, the maker of this video must seek the permission of the owner of the copyright in the song and the recording.
Permission to use a copyright work is usually granted in the form of a licence. A licence allows someone to use the work in a specified way for a limited period of time. Licences can be exclusive (granting use of the work only to the person who acquires the licence) or non-exclusive (enabling the copyright owner to license the use of the work to more than one person at the same time). There are blanket licences issued by collecting societies (see Track 6) and open licences that allow everyone to use the copyright work under certain conditions (such as the Creative Commons licences). You can find more information about licensing here: http://copyrightuser.org/licensing-and-exploiting/
The capacity of creators to license the use of a copyright work or only parts of it depends on who owns the rights in the work. In some cases creators, like Tina and Ben, will own the copyright in both the song and the recording, and they can negotiate a ‘synchronisation’ licence fee directly with the third party user such as a filmmaker (as here) or a games company. Alternatively, a music publisher and/or record company may control (all or some of) the rights and then it is they who negotiate the licence, or allow a specialist ‘sync’ company to do so on their behalf. For big-budget productions, such as Hollywood movies, synchronisation licensing can be very lucrative for rights holders! The income generated from these sources is shared with writers and performers according to the terms of the publishing/record deal (see Track 4).
In addition to the ‘sync’ fee, the use of music will often generate public performance income depending on how the work is used. For example, when a movie featuring recorded music is broadcast on TV it will generate income for rights holders including songwriters, performers, publishers and record companies through the various collecting societies (see Track 6).
Tina and Ben have various options to license the use of their song. For example, if they decide to self release their song through online platforms like YouTube, they can choose between the Standard YouTube Licence or the Creative Commons CC BY licence (see below). They can also register their song with a collecting society like PRS for Music and distribute their work through PRS blanket licences.
Of course, Tina and Ben are fictional characters conceived for the purposes of this video. By contrast, the song Twists and Turns was actually written by professional songwriters specialising in what is known as ‘production music’ for production libraries. Makers of audiovisual content access these libraries in search of appropriate music for their film, advert, game etc.
Using this type of music holds many advantages for users. It is generally cheaper than music released for retail market or music specially commissioned for a project, such as a film score. It is generally also easier to get permission to use, or ‘clear’, copyright in production music as a specialist production music company controls the rights. This means that using production library music allows the user to quickly and easily select the music they require without negotiating with different owners of the copyright in the song and the recording. On the other hand, commissioning the production of a new track for a video project offers the opportunity to compose a piece of music that responds to the project’s specific needs. For the project Going for a Song, we opted for a mixed approach. The production company Audio Network offered the makers of this video a synch licence to use their song Twists and Turns, and one of its original composers – Richard Kimmings – was commissioned to produce a new version of the same song for this video. The new track – performed by Lucy Kimmings and Kes Loy – was used to tell the story of a song from its creation to its distribution, with a view to explaining the various copyright aspects of this journey.
While copyright automatically applies to all original songs and recordings, some rights holders opt to license their work under a particular licensing system intended to make works more accessible to and easier to reuse by other creators and users. Creative Commons is the most well-known example of this. This set of licences allows creators to permit the use and re-use of their works under certain conditions, without follow-on users having to ask permission or pay. In order to maximise the dissemination and use of its educational resources, CopyrightUser.org distributes almost all of its content under the most open of the Creative Commons licences: CC BY. This licence allows everyone to freely share, remix, alter, and build upon Copyright User content for any purpose, under the only condition of crediting the creators of the work and acknowledging CopyrightUser.org as the source.
However, while Creative Commons CC BY may be a good licensing option for educational resources such as CopyrightUser.org, this licensing arrangement would not suit authors who wish to monetise their work. For example, the song Twists and Turns is registered with PRS for Music and distributed by Audio Network under paid licences. If we distributed our video in its entirety under the CC BY licence, people who wished to reuse Twists and Turns could just take and edit the audio track of our video instead of buying a licence from Audio Network, depriving the composers of the song and Audio Network of a revenue stream. Therefore, the video Going for a Song is offered with a combination of licences for its component parts: the visual elements are distributed under CC BY and free for everyone to reuse, whereas the music retains its original licensing arrangement. If someone intends to reuse Twists and Turns (or the version specially produced for our video) in their own project, they still need to buy a licence from Audio Network: https://www.audionetwork.com/browse/m/track/twists-and-turns_12460
Directed by Bartolomeo Meletti and Ruth Towse
Script: Kenny Barr, Bartolomeo Meletti, Ruth Towse
Art Direction & Animation: Marco Bagni
Storyboard & Illustrations: Sophie Natta
Copyright Advisor: Ronan Deazley
Production: Worth Knowing Productions Ltd
Web Design: Pete Bennet
Original Song: Twists And Turns
Composers: Barrie Gledden / Kes Loy / Richard Kimmings
© and ℗ 2007, Audio Network Limited
Version for Going for a Song Recorded and Produced by Richard Kimmings
Performers: Kes Loy (Ben) and Lucy Kimmings (Tina)
Used under licence.
Sound Design: Sarc:o
Music Advisor: Simon Anderson
Voice-over Artists (londonvoiceover.co.uk): Anna Neale (Tina) and Duncan Wilkins (Ben)
The resource Going for a Song is offered with a combination of licences for its component parts: the visual elements and the accompanying texts (‘Tracks’) are distributed under CC BY and free for everyone to reuse (as most of the content offered by CopyrightUser.org); whereas the music retains its original licensing arrangement (for more information see Track 7). If someone intends to reuse the song Twists and Turns (or the version specially produced for our video) in their own project, they need to buy a licence from Audio Network: https://www.audionetwork.com/browse/m/track/twists-and-turns_12460